The FDA and FTC jointly issued thirteen (13) warning letters to companies involved in the manufacture, distribution and retail of certain e-liquid products to be used in connection with e-cigarettes which feature packaging and/or advertising similar to and/or imitating that of children’s food products such as juice boxes, candy and cookies.

In the letters, the FDA contends that the products are misbranded under the Federal Food Drug and Cosmetic Action (the “FDCA”) because the labeling and/or advertising of the product is false or misleading, namely, that such products are made to look like those which are marketed to children. Additionally, a number of the letters further contend that certain products are misbranded because they have been sold to minors (those under the age of 18). In addition to the violations cited by the FDA, the FTC held that the actions of the companies are in violation of Section 5 of the FTC Act, the Section that prohibits unfair or deceptive acts or practices in commerce. The FTC argues that the Section 5 prohibition includes practices that introduce unwarranted safety or health risks and accordingly, highlight the hazards of liquid nicotine ingestion by children.

The issuance of letters comes on the heels of FDA’s recent enforcement actions which included sending forty (40) warning letters to companies involved in the sale of JUUL e-cigarette products to minors (“JUUL Products”). JUUL Products are purported to contain high levels of nicotine and have the appearance of a USB flash drive. The popularity of JUUL Products among minors was cited as the reason for the FDA’s actions.  In a recent statement from FDA Commissioner, Scott Gottlieb, MD it was announced that FDA had been successful in having eBay remove listings of JUUL Products which the FDA had concerns over. All recent actions were taken in conjunction with the FDA’s Youth Tobacco Prevention Plan which is focused on preventing minors from using and having access to vapor and e-cigarette products.  In his statement Commissioner Gottlieb said “We share the belief that these products should never be marketed to, sold to, or used by kids – and we need to make every effort to prevent kids from getting hooked on nicotine. The responsibility falls not only to the FDA, but also the companies making these products, the retailers selling them, and the online venues that help to fuel the teen popularity of, and access to, these products.”

Following the release of the joint letters from the FDA and the FTC, the FDA issued four (4) additional warning letters to retailers and manufacturers of e-liquid products who likewise appeared to market such products in a manner similar to children’s food products.

The continued actions taken by the FDA and the FTC against companies attempting to market vape and e-cigarette products to children show that this issue remains a high priority for the agencies.

You can read the Press Release from the FDA.